Learn how employees are contesting Workers’ Comp exclusive remedy in court

According to legal experts, there is an emerging trend in workers’ comp litigation – more and more cases are trying to bypass the “Grand Bargain,” the agreement that employers will provide compensation to workers injured on the job in exchange for immunity from lawsuits. Since, in many states, intentional tort is an exception to workers’ comp exclusivity, the lawsuits have targeted employers with willful violations of workplace safety rules. In such cases, it has to be proven that the employer acted deliberately and/or was virtually certain that its actions would result in injury or death.

Each state has its own standards for what constitutes intentional tort, but the bar is consistently high. It involves proving the employer had intent to harm the employee, or negligence that’s so wanton that the harm would be foreseeable to a reasonable person. A willful violation of OSHA is often cited as one factor, along with other evidence. In effect, the OSHA violation is a motivation for the lawsuit and is fodder for attorneys.

It doesn’t take long to find workplace injury attorneys promoting the idea on their websites. Here are a few:

“While workers’ compensation usually provides for medical treatment and a portion of lost pay, negligence lawsuits can result in compensation for pain and suffering, as well as compensation for medical bills and lost wages. Many workers are simply unaware of their legal rights to file negligence lawsuits. Many believe their only legal recourse is filing for workers’ comp. Time and time again, an injured worker and their family seek the advice of a work accident and injury lawyer when it is too late; the applicable statute has expired. That’s why it’s important to seek advice from a work accident injury lawyer as soon as possible after a serious work accident occurs.”

“An injured worker could have a much stronger negligence claim if OSHA has issued a violation against his or her employer.”

Why is this happening? Many states have had significant workers’ compensation reforms in the last 10 years. Some have made workers’ compensation systems less litigious and attorneys look for other avenues of litigation and some have placed more constraints on benefits, which can be perceived as no longer adequate to properly compensate injured workers.

A cursory review suggests that the courts have generally upheld the exclusive remedy provisions in favor of the employer, although there have been high settlement exceptions. However, many cases have had multiple appeals, an expensive process for employers. From an employer’s perspective, there are lots of reasons not to be in court. The time, cost, negative publicity, affect on employee morale, as well as the possibility of a jury trial and punitive damages can be daunting. In addition, most workers’ compensation insurance policies do not provide coverage for intentional acts.

To protect themselves from the liability of personal injury lawsuits, employers must be vigilant about workplace safety and health programs. Complying with OSHA standards and, if citations are issued, carefully weighing the options and considering how the citation may affect the company in the future, as well as having a strong recovery at work program and commitment to injured workers are keys to deterring personal injury lawsuits.

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